Vancouver Sun – Ian Mulgrew
Nearly half a century after he stood in the Supreme Court of Canada and made history for aboriginal people, Tom Berger rose again in the august chamber.
On the eve of his 84th birthday, his hair a snowy thatch, the man once known across the north as “Ni-wha Judge” (Our Judge) asked the high bench to once more step in to help the country’s founding peoples work toward reconciliation.
His appearance long ago led to the 1973 Calder decision and modern treaty signing — the first in 1975 involving the James Bay indigenous people, and the most recent in 2016 with the Algonquin in Ontario and land that included Parliament Hill.
With chiefs and elders arrayed behind him in the gallery, however, Berger said the treaty process had run into trouble over a huge swath of pristine wilderness the size of New Brunswick in the central Yukon.
He wanted the court to provide some guidance on how to interpret these complicated constitutional pacts that are very much his life’s legacy.
Born in 1933, Berger was the son of an RCMP sergeant who emigrated to Canada from Sweden.
His grandfather was a magistrate in Gothenburg, an uncle a wealthy textile merchant, a cousin married into former Prime Minister Olof Palme’s family.
Berger received his real legal education in the old Niagara Hotel taproom on Pender Street from Tom Hurley, a hard-drinking loquacious Irishman known for his acumen, his support of the underdog, and his love of boxing.
Under Hurley’s tutelage, Berger earned headlines for victories for injured workers, the first enforcement of the Provincial Pollution Control Act, a slander suit by a civil servant against Premier W.A.C. Bennett.
But it was Hurley’s Welsh wife, Maisie, who infected Berger with her passionate belief that First Nations still owned the province — lock, stock and barrel.
A cousin of the Duke of Argyll, family friend of Rudyard Kipling, great grand-daughter of Sir Alexander Johnston, who freed the slaves of Ceylon, Maisie was unique.
From the moment she made Vancouver her home in 1918, she was incandescent.
She met Hurley on the city’s boxing scene and helped resuscitate the Vancouver Athletic Club while becoming B.C.’s most vocal advocate for native rights.
Most of the province was not ceded by treaties — the colonial government signed a handful on Vancouver Island and elsewhere, but stopped because of the expense.
In 1946, Maisie founded The Native Voice, the country’s first aboriginal newspaper.
She was only woman accepted into the Native Brotherhood, the major provincial First Nations group in mid-century, and was named, “Chief Sim-Klux, Mother of the Fin-Back Whales of the House of Gooksan.”
More than anyone, it was Maisie who indelibly stamped the young idealistic Berger with the fervour for aboriginal rights that drove his career after a fling with politics.
An MP at 29, and B.C. NDP leader at 36, Berger returned to full-time law after he was spectacularly stomped by W.A.C. Bennett in the 1969 campaign.
Berger was named to the B.C. Supreme Court shortly after arguing the Calder case.
And though the majority ruled against him in 1973, the minority supported the idea that aboriginal title existed, a moral victory that persuaded the federal government to change its stance toward land claims.
At 41, in 1975, Berger conducted an inquiry into a $6-billion project to put a pipeline down the Mackenzie Valley. He scuttled it on behalf of First Nations, and he went on to investigate the troubled Alaska land claims process.
In 1983, shortly after a squabble with then-Prime Minister Pierre Trudeau over the inclusion of women and aboriginal people in the Constitution, Berger was reprimanded for his activism by the Canadian Judicial Council.
He chose to quit rather than continue under the pall.
Since then, he has practiced at the vanguard of native law, which brought him back before the top court on Wednesday.
In the three territories, modern treaties are the bedrock of land-use planning.
Under the Yukon deal signed by the Nacho Nyak Dun, Tr’ondëk Hwëch’in and Vuntut Gwitchin, the First Nations gave up aboriginal rights to traditional territory in the Peel Watershed, roughly 68,000 sq. km., about the size of New Brunswick.
In exchange, they received ownership of about three per cent and a voice in the management of public resources.
There is no specific project at issue in this case — but rather zoning on a territorial scale, Berger explained.
The process for the Peel Watershed began in 2004 with a commission that completed a 300-page land-use plan in 2009.
The document divided the massive watershed into more than a score of units, roughly 80 per cent protected and a handful set aside for resource development.
“But the government of Yukon in 2012 decided it would go ahead with its own plan for the Peel very much highly weighted toward resource development,” Berger said. “The First Nations and the environmental groups brought this lawsuit to uphold the independent commission’s assessment.”
The lower courts set aside Yukon’s plan and Yukon now wants to go back to the beginning of the process while the First Nations say going back to the start would be wrong and the report should stand.
“The First Nations have a right not to be blown off at the end of the day,” Berger insisted.
Still, the court feared judges would be asked to spend endless hours micro-managing these processes.
“I’m wondering if that makes much sense, that might be a recipe for parties bringing everything perpetually back before the courts,” Chief Justice Beverley McLachlin said. “This bothers me.”
The court reserved its decision.
Maisie died in 1964, passing the torch to Berger, and if you listened carefully Wednesday you could hear the resonance of her voice in his argument.
“Masie was active at a time when there were no land claims agreements, when the idea of aboriginal title, of aboriginal rights, was something that was not taught at the law schools nor recognized in the courts,” he reminisced.
“There were laws that prevented them raising money to hire lawyers to advance their land claims — Parliament actually passed such a law. The fact that we are here now in the Supreme Court of Canada arguing about an elaborate provision in a land claims agreement that will govern the land-use planning in Yukon for the next 50 years shows how far we have come. I think she would be pleased.”